Dec 8, 2008

From the December 8 Capitol Insider put out by the Disability Policy Collaboration (DPC):

DPC staff will meet this week with members of the Obama Transition teams to discuss high priority disability agenda issues and the Social Security Administration. The purpose of these meetings is to educate and inform the transition team about major disability policy issues. In addition, some meetings are targeted to specific federal agencies as the transition team conducts its reviews.

"What I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being . . . dealt with sometimes unfairly"

-- Barack Obama in May 2008.

The federal courts have had relatively little impact on Social Security in recent years. This may change as the composition of the courts changes over the next four or eight years as a result of Barack Obama's appointments. A Washington Post article reports that 56% of the judges on the Courts of Appeals are now Republicans. Congress seems likely to approve a bill to add 14 judges to the Courts of Appeals and 52 District Court judges.

The most dramatic change will occur at the 4th Circuit Court of Appeals. Republicans have a 6-5 majority on the court, but there are four vacancies on the Court.

My advice in recent years on appealing to the 4th Circuit has been to not appeal, no matter how strong the case or how egregious the mistakes below may have been. It has literally been impossible to win at a Court this has become astonishingly right wing. The impression given was that the judges of the 4th Circuit did not bother to read the briefs before entering two paragraph per curiam opinions.

There will also be a change in control of the 2d and 3d Circuits as well.

Dec 6, 2008

LuAnn McAuliffe ... realized that she couldn’t work anymore, so in summer 2005 she filed an online application for Social Security Disability Insurance.

It wasn’t until January 2008 that McAuliffe started receiving payments. ...

But industry experts say that’s not the only reason the system is so backlogged.

Many people are being denied after a first or second application because they don’t know how to complete the paperwork.

“If you don’t do this every day, you’re not going to be an expert,” said Rebecca Ray, corporate communication manager for Allsup, an SSDI representation company.

I am glad that Allsup is generating this sort of article. I do not mind them getting the publicity. I have been quoted in the press before and I never got much business out of it. Allsup probably does not either. But telling claimants that the problem is that they did not fill out their paperwork properly? Come on, that is a typical claimant misconception. Do not mislead people that way. The problem is not that simple and Allsup knows it.

The Social Security Administration has fallen behind in reviewing the medical conditions of 1.7 million Americans on its disability rolls, potentially paying up to $11 billion in benefits to people who are no longer disabled.

The agency's failure to tackle those pending disability reviews allows tens of thousands of undeserving people to bleed government funds that Americans count on when they become too sick or injured to work, The Oregonian found in an ongoing investigation of Social Security.

"It's lost money to taxpayers," said Rick Warsinskey, past president of the association representing Social Security's field managers. "There's going to be less money available to pay people their Social Security. We're setting aside money for them. ... It's going to be spent." ...

The reviews have a phenomenal rate of return, last year saving $11.74 for every $1 spent, according to agency records. But Social Security's leaders have pushed those potential savings aside to confront another embarrassing backlog -- 766,905 people waiting to plead cases for benefits before the agency's corps of judges.

Social Security's chief priorities -- speeding up disability claims and serving customers -- leave the agency scarce funds to conduct disability reviews. The agency processed about one in three that came due last year, says Kelly Croft, the agency's deputy commissioner for quality performance....

Officials at Social Security's Baltimore headquarters say 1.7 million medical disability reviews are now overdue. Another 1.7 million of them will come due next year, but the agency says that it expects only enough funding to process 1 million. ...

Astrue, confirmed as commissioner in early 2007, declined through a spokesman to be interviewed about the disability review problem, saying he was too focused on the agency's budget and backlog of disability claims. ...

Astrue's budget officers now estimate that Congress would have to make special appropriations of $2.4 billion just to get current with medical disability reviews and return the agency to its historic volumes of SSI eligibility reviews. And they estimate, even with that funding, it would take until 2013.

If $2.4 billion is how much is needed to get up to speed on continuing disability reviews (CDRs), how much is needed to get up to speed on holding hearings for disability claimants and answering the telephones at Social Security?

Dec 5, 2008

Here is another example of the Potemkin effect, this time in Indiana. A TV story on Sheila Dorrel, a claimant who had been waiting for three years to receive Social Security disability benefits, brought about a quick and happy resolution for Ms. Dorrel. Social Security told the TV station that they could not move up a specific case, but apparently did, approving Ms. Dorrel shortly after the TV story. If we could just get several hundred thousand media stories on invididual cases we could solve the backlog.

On November 21, 2008, the Office of Management and Budget (OMB) clearedproposed regulations to make "technical revisions to our rules on income and resources to conform with previous changes to the Social Security Act" and "to extend the home exclusion to individuals who leave a home because of domestic abuse."

Ordinarily, proposed regulations appear in the Federal Register within a week after they clear OMB. This one has not yet been published.

I can only surmise that the Obama transition team has asked Commissioner Astrue to put a hold on all regulatory activity until after the inauguration and that hold includes something as innocuous as this proposal seems to be.

Dec 4, 2008

Take a look at this post by Nobel-prize winning economist Paul Krugman to his blog at the New York Times. Krugman believes that our economy is losing jobs at an incredible rate. The new conventional wisdom is that we need massive infrastructure spending to prevent an economic calamity, but Krugman fears that it will take most of a year before infrastructure projects can kick in. We may be at double digit unemployment before infrastructure projects can even help the economy in any significant way.

As I read this, I wonder how Social Security would fit into a situation in which it becomes urgent for the federal government to spend money rapidly. A temporary moratorium on the FICA tax? Large bonus payments to Social Security recipients? Interim benefits for Social Security disability claimants? Massively increased operational budget for the agency? Obviously, every agency in government would be affected, but Social Security distributes more money than any other agency.

As 78 million baby boomers near retirement, the Social Security Administration faces double trouble; not only will it have to provide benefit and pension services to this large retiree population, it also must address a retirement wave within its own workforce.

While many federal agencies have not yet been shaken by the mass exodus of seasoned workers projected in the next eight years, Social Security expects its retirements to peak by 2010. Currently, about 25 percent of its 61,000 employees are eligible to retire, including 60 percent of senior executives. "The retirement wave has doubled for us," says Reginald Wells, deputy commissioner for human resources and chief human capital officer at Social Security. "As the baby boomers are retiring and moving into more leisure activities, they are coming to us to register for that retirement, and our employees are retiring in record numbers." ...

"Our workforce is the lowest it's been since the [1974] supplemental Social Security income came into being," Wells says. "We're down to 61,000 employees, down from 85,000 at one point." ...

And while Congress has offered Social Security a bigger budget and more staffing flexibilities, Wells says, the agency still cannot replace every position one for one, and it's the commissioner's and managers' responsibility to pinpoint where the most urgent hiring needs are.

Dec 3, 2008

For eight years, federal unions have felt left out in the cold with an administration clearly at odds with organized labor. Now that Barack Obama is on his way, unions expect a warmer relationship — and more clout. ...

For federal managers, the change will mean the likely return of the Clinton-era formalized labor-management partnerships between senior government officials and union leaders. Those were dissolved within weeks of the Bush administration taking power....

Greg Heineman, a district manager for the Social Security Administration in Norfolk, Neb., who is also president of the National Council of Social Security Management Associations, worries that managers could lose some important authorities if partnerships aren’t implemented correctly.

“If we go back to the partnerships, it should be clearly defined what areas are open for partnership discussions and which areas are still management’s prerogative,” Heineman said. “Under [President Bill] Clinton, at least from the feedback we got from our members, a lot of the problem was that it wasn’t clear what the rules were.”

Heineman said unions sometimes had too much say in management decisions, such as choosing exceptional SSA employees for financial awards. SSA’s partnership allowed the American Federation of Government Employees to help decide who received awards, and Heineman said the union pushed to hand out smaller awards to more people. Managers wanted to hand out bigger awards to only the best employees, he said.

“It took the ability away from managers to reward employees doing an outstanding job, and the awards were more flat,” Heineman said.

If partnerships return, Heineman said managers will welcome the opportunity to exchange ideas with employees and unions. But he wants to make sure managers retain important authorities, such as the ability to assign work to employees as they see fit.

Of course, the extent of the President's ability to order an independent Commissioner of Social Security to cooperate with employee unions is unclear. Will Commissioner Astrue discover the indepedence of his office after President Bush leaves office and, if so, what the wouldCongress and President Obama do about the exercise of such indepedence?

The Belleville News-Democrat has a story on sewer service to Allsup, one of the largest, if not the largest, entity providing representation to Social Security disability claimants. The sewer story itself is of little consequence to anyone who does not live in the area, but the reason behind the story is of more consequence to those interested in Social Security. Allsup needs sewage service changes because it wants to make a $10 million expansion that will create hundreds of jobs. Allsup is seeking a promise of service to an unlimited number of additional buildings. Allsup is threatening to do the expansion elsewhere if it does not get what it wants.

Not much to complain about on the diversity front, but note the 14% increase in high level managers over seven years! This is at a time when other Social Security employees, including lower level managers, have been told to suck it up and just work harder and smarter as their ranks have thinned. Maybe there is a good explanation, but it does not look good. Any explanation that talks about increased responsibilities will not look good since field operations have had increased responsibilities as well.

In a sense, it is hard to argue with the criteria used. These are reasonable criteria for Social Security given the budget the agency is working with. In another sense, the criteria are a glaring example of "defining deviancy downwards." Major problem areas such as telephone service and field office waiting time are avoided altogether. The criteria for judging success in holding hearings on Social Security disability claims are far, far below what anyone would judge to be acceptable.

By the way, hidden on page 104 is an admission that the Social Security Administration owes claimants over $2 billion as part of the SDW (Special Disability Workload), which is accumulated mistakes in paying benefits made over a long period of time that were discovered by analysis of Social Security's databases. The SDW backlog is being worked down over a long period of time -- many years. It is a labor intensive business that deserves public attention. It should have been done quicker, but the resources have not been available.

Nov 29, 2008

The Government Accountability Office (GAO) has produced a long report dealing with the questions that might be asked of nominees to positions in the new Administration for each agency, including Social Security. The part concerning Social Security begins at page 124.

The Social Security part reflects the biases of GAO, which I believe reflect a basically Republican take on Social Security. Some themes:

Social Security ought to get into the effort to mainstream people with disabilities by denying more of their Social Security disability claims and by somehow forcing those who get on benefits to go back to work.

If there are backlogs at Social Security, it must be because of bad management

Why can't Social Security close more field offices and reduce its workforce?

Further resources for Social Security are out of the question, so it's only a question of spreading the pain around.

And, of course, it's time for Democrats to get on board with cutting Social Security benefits because the trust fund is about to run out of money.

I know the list I am giving is a gross exaggeration of the GAO report, but there are assumptions written between the lines of this report and they are not the sort of assumptions that should be made in this political environment. Someone at GAO needs to wake up and figure out that come January 20 the Democrats will control the White House and the Congress.

Nov 28, 2008

The cost of living went down by a record 1% last month. This was too late to figure into this year's cost of living adjustment (COLA) for Social Security benefits and will be factored into next year's COLA computation. It appears that the United States is heading rapidly into a major recession. It is entirely possible that the cost of living will have declined over the year time leading up to next year's COLA computation. This raises an interesting question: Could there be a negative COLA next year that would reduce Social Security benefits?

The answer appears to be no. The statute is 42 U.S.C. §415(i). It talks at considerable length about how to compute an increase in Social Security benefits due to inflation. The word "increase" appears over and over in the statute. I doubt that one could reasonable interpret the statute to allow computation of a negative COLA for Social Security benefits. Still, this appears to me that Social Security should request an interpretation on this from the new Attorney General.

Nov 27, 2008

Nov 26, 2008

Lisa de Soto and Mary Chatel both bear a heavy responsibility for the disastrous Disability Service Improvement (DSI) scheme. DSI was former Commissioner Barnhart's baby and she bears the most responsibility, but de Soto and Chatel were to blame, as well, since they were heavilyinvolved in planning and promoting DSI. Although Martin Gerry, who was also responsible for DSI, was abruptly fired after the current Commissioner took over, de Soto and Chatel, to my surprise, stayed at Social Security. De Soto even remained in a high position.

Both are now leaving Social Security to go to the Federal Executive Institute.

Under Lisa deSoto’s leadership for the past three years, the Office of Disability Adjudication and Review has met ambitious goals and made tremendous business process improvements that have set the stage for eliminating the disability backlog. Lisa has accepted an offer from the Federal Executive Institute (FEI) to teach and share her leadership skills with new and aspiring executives from across government for the next two years. While we will miss Lisa’s passion and vision, it is a unique opportunity for her to reflect, learn, and then return to the agency with a broadened perspective. Lisa will begin her Executive-in-Residency with the FEI on January 16, 2009.

Upon Lisa’s departure, David Foster will become the Deputy Commissioner for Disability Adjudication and Review.

On November 24, Jim Winn will become Chief of Staff and Jo Tittel will become Deputy Chief of Staff. LaTina Greene, who has been serving as the Chief of Staff’s Special Assistant, will move to the Office of Central Operations as Deputy Associate Commissioner on January 16, 2009.

In the Office of Retirement and Disability Policy, effective immediately, JoEllen Felice is the Associate Commissioner for Income Security Programs, a capacity in which she has been acting since July 2008.

In the Office of Systems, Pete Malinauskas, Associate Commissioner for Retirement and Survivors Insurance Systems, is retiring on January 3, 2009. Bill Zielinski, currently the Deputy Associate Commissioner for Applications and Supplemental Security Income Systems, will become Associate Commissioner upon Pete’s retirement. The Deputy Associate Commissioner position Bill vacates will continue to be available as an SES Candidate Development Program assignment.

In the Office of Telecommunications and Systems Operations, Gary Augustine has moved from Assistant Associate Commissioner for Enterprise IT Operations and Security to the Assistant Associate Commissioner for Infrastructure Architecture and Security. Marti Eckert, formerly the Deputy Associate Commissioner for Systems Electronic Services, is now the Assistant Associate Commissioner for Enterprise IT Operations and Security. The Deputy Associate Commissioner for Systems Electronic Services will be available as an SES Candidate Development Program assignment.

In the Office of Budget, Finance and Management’s Office of Facilities Management, Betsy Bake has been appointed as Deputy Associate Commissioner for Facilities Management following Nancy McCullough’s retirement earlier this month.

In the Office of Human Resources, Assistant Deputy Commissioner, Feli Sola-Carter, has announced that she will retire at the end of January 2009. Upon Feli’s retirement, Nancy Berryhill, currently the Denver Regional Commissioner, will serve as the Acting Assistant Deputy Commissioner. Martha Lambie, Deputy Regional Commissioner in Denver, then will serve as the Acting Regional Commissioner.

In the Office of the General Counsel, Kristi Schmidt has been appointed as the Regional Chief Counsel in Kansas City. Gwen Jones Kelley has been appointed as the Deputy Associate General Counsel for Program Law. Gwen will continue to serve as the Acting Associate General Counsel for Program Law.

Mary Chatel, currently the Senior Advisor for Program Outreach in the Office of Retirement and Disability Policy, will also begin an assignment with the Federal Executive Institute on December 1, 2008.

Lastly, on January 20, 2009, Tom Hughes, Chief Information Officer, and Mike Korbey, Senior Advisor to the Deputy Commissioner, will depart the agency.

Over the last 6 years, Tom has garnered the agency high scores in security, and he has been a catalyst in developing an IT vision for the 21st century. Greg Pace will serve as the Acting Chief Information Officer upon Tom’s departure.

In addition, during his tenure with the agency, Mike has been an effective advisor to the Deputy Commissioner. I would like to thank Tom and Mike for their contributions to the agency and for their commitment to public service.

Does anyone have a list of the Schedule C positions at Social Security? These are policy-determining positions that are subject to change when a new administration takes office. Advance approval from the White House is required to appoint someone to a Schedule C position.

There is an anonymous report that Lisa de Soto, Social Security's Deputy Commissioner for the Office of Disability Adjudication and Review, is leaving her position to teach at the Federal Executive Institute. David Foster is to replace her. Her last day at Social Security is January 16, four days before Barack Obama's inauguration.

Update: Here is some confirmation that de Soto is out. Apparently, there were a number of other personnel changes as well. Here is some information on David Foster:

Mr. Foster has held high-level positions in the federal government, having served in various capacities at the White House, the Department of Health and Human Services in Washington, DC and the United States Attorney's Office in Alexandria, Virginia. In the private sector, Mr. Foster has worked extensively in the health care field as the head of government relations for biotechnology firms and as counsel for the National Leadership Coalition on Health Care. He also has chaired committees for the American Bar Association, the Federalist Societyand the Biotechnology Industry Organization.

Mr. Foster is a magna cum laude graduate of Bowdoin College and received his J.D. from Northeastern University.

When you wait years for the government to approve your disability insurance request there’s no doubt you need that money. One woman who called us said the Social Security Administration took months to send her more than $50,000 in back pay. Our Dianne Derby got the money for her in no time. It’s a 7 On Your Side Problem Solver. ...

She was approved for disability insurance earlier this year but can’t get the Social Security Administration to send her the more than $50,000 in back pay they granted. It’s money she needs after dipping into her retirement for 3 years while waiting for a final answer from the SSA.

“I called and they kept saying ‘Oh it just takes a while’,“ said Ogburn.

Our calls to SSA’s regional headquarters in Atlanta brought forth an apology to Ogburn from spokesperson Patti Patterson and an admission they should have moved faster. “We do try to pay people as quickly and timely as possible,“ said Patterson. “Unfortunately, on some occasions things don’t get processed as quickly as they should. This is an example of that.“

Within days Ms. Ogburn was more than $50,000 richer.

I think I will describe this sort of thing as a "Potemkin", in honor of Grigori Potemkin, a minister to Catherine the Great of Russia. Potemkin allegedly had hollow facades of buildings constructed along the route that the Empress was taking in a newly conquered area of the Crimea to impress her with the value of area.

The Consortium for Citizens with Disabilities urges the Administration and Congress to consider the following priorities:

Ensure that SSA is given sufficient funding to make disability decisions in a timely manner and to carry out other critical workloads. SSA must be provided with adequate funds for its administrative expenses to make significant strides in reducing the disability claims backlog, improve other services to the public, and conduct its program integrity activities. Congress also should consider separation of SSA’s administrative budget authority from the Section 302(a) and (b) allocations for discretionary spending in other important programs. The budget would still be subject to the annual appropriations process and Congressional oversight.

Develop proposals to promote employment among beneficiaries and potential beneficiaries and improve work incentives. However, any proposals should not make changes that would damage the existing Social Security and SSI disability programs. CCD has developed a set of principles to guide the development of proposals. The principles include: no changes to the Social Security definition of disability; no work requirements or time limits in the Social Security and SSI disability programs; and no cutbacks to eligibility criteria for these programs. The Statement also includes a comprehensive discussion of improvements to the disability programs and work incentives that CCD has supported over the years.

Ensure that proposed changes to the disability claims process protect the rights and interests of people with disabilities and do not elevate speed of adjudication above accuracy of decisionmaking. This is problematic and not appropriate for a non-adversarial process. CCD has numerous suggestions for improving the disability claims process for people with disabilities and many have already been initiated by SSA. We believe that these recommendations and agency initiatives, which overall are not controversial and which we support, can go a long way towards reducing and eventually eliminating the disability claims backlog. The CCD recommendations, which include improved development of evidence at the beginning of the process and technological improvements, are summarized in testimony presented before the House Ways and Means Committee on April 23, 2008.

Guarantee, if the debate on the solvency of the Social Security Trust Funds is revived, that the impact on people with disabilities is considered and that their interests are protected. CCD has urged that consideration of any proposal be required to include a beneficiary impact statement.

Improve, simplify, and update the SSI program through legislative, regulatory, and operational changes.

House and Senate leaders have charged the Appropriations Committees to complete action on the nine Fiscal Year Appropriations bills before the January 20 inauguration. President-Elect Obama wants to sign a stimulus package and the remaining FY 2009 Appropriations bills shortly after he takes office. Current appropriations are frozen at the FY 2009 levels under a continuing resolution that expires in early March.

I had earlier posted that former Social Security Commissioner Kenneth Apfel had just left the University of Texas to take a job with an insurance company. Later, I updated that to say that it appeared that the Kenneth Apfel at the insurance company is a different fellow with the same name. An article in the American Association for Retired Persons (AARP) Bulletin reports that the Apfel who used to be Commissioner is now at the University of Maryland.

Ethel Zelenske is the Director of NOSSCR's Government Affairs Office in Washington. She reported that Social Security entered the 2009 Fiscal Year (FY) on October 1, 2008 with an 8,100 man year (or in government terms Full Time Equivalent or FTE year) backlog of work apart from the Office of Disability Adjudication and Review. Note that I did not say man hour backlog, but man year backlog. (Update: This 8,100 man year backlog figure was used earlier by Senator Baucus as the size the workload backup may grow to in FY 2009.)

Zelenske reported that Michael Astrue appears to want to stay in his position as Commissioner of Social Security.

Zelenske mentioned that Representative John Lewis of Georgia, an important member of the House Ways and Means Committee, has promised to introduce legislation to raise the cap on fees for representing Social Security claimants and to index that cap for inflation.

Reginald Jackson, Social Security's Acting Deputy Associate Commissioner for the Office of Disability Policy, talked about various policy issues, one of which is that Social Security is updating its medical listings for disability. I inquired about the status of the mental impairment listings. Social Security had obtained approval from the Office of Management and Budget (OMB) for new mental impairment listings in July but has not published the proposal in the Federal Register. Jackson's response was essentially, "Oh, you mean the 12.05 proposal? We were told that was on hold because of the transition to the new administration." Listing 12.05 is for mental retardation. It has become the most controversial of listings. I have no doubt that Michael Astrue intended to make it dramatically more difficult for mentally retarded people to qualify for disability benefits, but realized that he would never be able to get this past OMB as a final regulation in an Obama Administration.

Susan L. Brown, Social Security's eDIB Coordinator, told the group that Social Security hopes to roll out attorney and representative access to the electronic files over the internet nationally by this time next year. Interestingly, she mentioned that attorneys and representatives would be assigned an ID code for access to electronic files. Attorneys and representatives have objected to being required to use their own Social Security numbers as a unique identifier with Social Security, as is now the case. The concern is that this gives their own staff, Social Security staff and even their clients access to this confidential information. An ID number other than a Social Security number would be welcome news for people like me. I would be willing to bet that because they have ready access to my Social Security number several Social Security employees have already looked up my earnings record. They could get fired for it, but human nature being what it is, they have probably already done it.

Nov 23, 2008

As the sun sets on the Bush administration, the survival rite known as burrowing is under way. Burrowing is when favored political appointees are transformed into civil servants and granted instant tenure on the federal payroll. ...

The promises extend to such trouble spots as staff shortages that have created a shameful backlog in Social Security disability claims ...

It’s encouraging that the president-elect recognizes that to make the changes he’s promising — and deliver a government that will protect and help its citizens — he will need energized, rather than alienated, federal workers. ...

Nov 22, 2008

The meter always read "expired." But the champagne-colored Toyota sedan never seemed to get a ticket.

A placard on the dashboard said simply "federal judge official business." No name. No authorizing signature. No date. No contact information. Nothing to suggest the car's owner had special permission not to feed the meter.

No tickets were ever issued, though, because until October there were so many different parking passes in circulation Downtown that meter enforcers could not verify whether the permit was legitimate.

It wasn't.

After a bit of digging, it turns out the car belongs to administrative law judge Reinhardt F. Korte, who is one of 13 administrative law judges assigned to Indianapolis by the Social Security Administration to hear disability cases.

SSA spokeswoman Carmen Moreno said neither Korte nor any of the other dozen administrative law judges were authorized to get free parking. They also aren't authorized to use a pass.

Korte, 63, said through Indianapolis attorney John Forbes that he acquired the permit from a now-retired judge, William Vaughn, sometime around 2006 and assumed it was OK to use. After The Star's inquiry, Korte called the Office of Inspector General to inquire himself, Forbes said, and stopped using the pass.

Attempts to reach Vaughn were unsuccessful.

"We hold our employees to a high standard of conduct,'' Moreno said, "and are disappointed with the actions of this individual."

Moreno said the agency was looking into Korte's actions. She said she couldn't discuss the results of any investigation because of privacy laws.

From television station WSPA in Greenville, SC (which must be 7 on the dial):

Since our story “Denied for Disability” aired earlier this month so many of you have asked for our help with your disability claim. Well we have good news for applicants who have waited more than 2 years for their hearing. In the last few weeks Greenville’s hearing office has made decisions on a record number of cases and nearly 1000 more have been moved to other offices to get processed faster. Dianne Derby has more in this follow up to a 7 On Your Side Problem Solver “Denied for Disability”. ...

[W]hen we talked to the SSA for a story that aired earlier this month they said they would be transferring cases to faster hearing offices. At the time they said Greenville was close to last place out of more than 140 hearing offices in the country taking more than 2 years on average to process cases.

Here’s the big news…since our story aired Greenville processed so many cases they jumped to second place. Plus they’ve moved nearly 1000 cases waiting more than 2 years to other hearing offices.

Nov 20, 2008

SSA is interested in developing a prototype of a fully automated system that would allow SSA electronic access to information contained in claimants’ personal health records [PHR] once SSA provides authorizations to release that information it receives from claimants. The PHR prototype would require prior authorization from claimant to release information to SSA electronically in Continuity of Care Format. This system would use the standards that the Health Information Technology Standards Panel (HITSP) approved for other purposes, and apply those standards to the process of obtaining data from the PHR. The prototype will also need to provide the technical process for electronically transmitting authorizations to release medical information between a PHR and third party entities, such as SSA, based on the approach demonstrated in the Nationwide Health Information Network effort and the medical evidence gathering and analysis prototype with Beth Israel Deaconess Medical Center in Boston, Massachusetts.

Martin Gerry was former Commissioner Jo Anne Barnhart's right hand man at Social Security. Gerry tried to hang on after Barnhart left, but was abruptly fired by Barnhart's replacement, Michael Astrue, at about the same time Astrue decided to drop Disability Service Improvement, Barnart's and Gerry's ill-fated grand plan to rescue the Social Security disability programs. Gerry's firing included being marched out of the building by security guards.

About 70 percent of the estimated 14 million Americans with severe disabilities are unemployed. Martin Gerry's job is to find ways to reduce this unemployment rate.

Mr. Gerry isexecutive managing director of a newlycreated institute within the national nonprofit agency NISH — Creating Employment for People with Severe Disabilities. A severe disability is classified as a physical or mental impairment that seriously limits one or more functional capacities. ...

Established in 1974, NISH provides job opportunities through federal contracts for people with severe disabilities.

The NISH Institute on Economic Empowerment will conduct research to see how job opportunities can be expanded and improved for people with severe disabilities. As director, Mr. Gerry will lead a team of six in establishing the institute and developing research priorities.

He said one of the main challenges of his job will be determining thosepriorities.

NISH is a major subcontractor in the Ticket to Work program, which aims to put Social Security disability recipients back to work, but which is mostly wasting money.

The Annual Meeting of the National Council of Social Security Management Associations (NCSSMA), an organization of Social Security management personnel, included some high level meetings. Here are some excerpts from the minutes of a meeting with Linda McMahon, Social Security's Deputy Commissioner, Operations (DCO) in late October:

Although there were very high hopes that we would get $50 million above the President’s budget, Linda believes we will be extremely lucky to get the President’s budget, and we could be in a yearlong Continuing Resolution (CR). [It sounds like she had trouble believing that Barack Obama would be elected President. Notice below that Commissioner Astrue was quite a bit more optimistic.] Any new President will walk into a budget deficit, but the Agency will continue to make its case. Overtime has already been allocated for the first quarter of this fiscal year, split evenly between FOs [Field Offices] and the PCs [Program Centers].

Linda reiterated that during the CR, Operations would only be allowed to hire 1 individual for every 3 losses. They are waiting until December to see where losses occur. The first priority is the 800 number. There will be limited field hires for critical situations. We were able to do some advance hiring for 2009 in 2008.

The Commissioner ... is interested in providing resources to ODAR [Office of Disability Adjudication and Review] who in the past received less attention in terms of hiring, systems, etc. Congress is focused on the challenges faced by ODAR and is sensitive to decreasing the backlogs. If the problems ODAR faces are not fixed, then credibility for the entire Agency is lost. Another challenge is a shifting of workloads as hearings are moved from ODAR to Operations to effectuate them.

Commissioner Astrue also met with the group. Here are some excerpts from that meeting:

In FY 2008, due to attrition and experienced ALJs being used to train the new judges, the Agency actually had about 46 fewer Administrative Law Judges (ALJs). The best ALJs were taken offline to help not only with training the new ALJs but also with the hiring process. ...

Despite all the distractions of hiring and training, we were able to improve productivity because of the commitment of employees. We have locked ourselves into ODAR facility decisions that were more suitable years ago. There are parts of the country that have lighter workloads and parts that are heavier. In particular, in the Atlanta and Chicago regions, the number of facilities is less than adequate.

Under the Continuing Resolution, there is a 1 for 3 replacement hiring rate in the field offices, and 1 for 2 in the DDSs because turnover rates are higher and salaries are lower. The replacement hiring rate in ODAR will be 1 for 1. The new Agency Strategic Plan sets some extremely tough goals for them. ODAR gets the lion’s share of the credit for reducing disability workloads. ...

He feels there is a reasonable chance of exceeding the President’s budget in FY 2009. In the past when Congress has not fully funded the Agency, performance has deteriorated. ...

The Commissioner indicated it took him 11 months to realize there was no focal point to improve notices, to ensure they were up to date, and to prevent them from adding to the workload burdens. He looked at some ODAR notices which were terrible, so he personally made recommendations for rewriting these.

Commissioner Astrue held a public hearing today on his compassionate allowance scheme. This hearing concerned traumatic brain injuries and strokes and featured speakers from the Department of Defense and the National Institutes of Health.

Traditionally, Social Security has been anything but compassionate or quick in making disability determinations in brain damage cases. Social Security's standard practice is to delay decisions in these cases for months and months in hope of improvement and then to be oblivious to anything other than the most obvious effects of brain damage. Frontal lobe damage, which has its effects primarily upon personality, is completely ignored in most cases. State of the art neuropsychological testing is treated as unimportant.

Alexis Simendinger at the National Journal's Lost in Transition Blog is reporting that President-elect Obama has chosen Peter Orszag to be his Director of the Office of Management and Budget (OMB). OMB has considerable power over the Social Security Administration, and not just through its power over the budget. No regulations get published the Federal Register without OMB approval. Orszag was once an economic adviser in the Clinton White House and has more recently been the director of the Congressional Budget Office.

Orszag co-authored a book calling for raising the retirement age for Social Security benefits, increasing the Social Security wagebase and reducing Social Security benefits for high wage earners.

There are 12 vacancies on the Courts of Appeals and 25 at the District Court level. There are four vacancies on the 15 member Fourth Circuit Court of Appeals alone. One of the vacancies on the Fourth Circuit dates back to 1994! There will be many more vacancies over the next four years. Politics aside, the federal courts need more judges right now.

Barack Obama's appointments to the federal bench will have a significant impact, with Social Security being one of the ways they will have an impact. Their impact may be particularly important when it comes to class actions.

Does this improvement seem too good to be true? How could there be a 56 day reduction over the course of just 63 days? Is it possible that there has been some fiddling with the method by which these numbers are generated? Just looking at the numbers for the office I am most familiar with, Raleigh, I see a reduction in processing time from 509 days to 497 days yet there has been no surge in productivity locally that I have noticed. If anything, my impression is that things continue to slowly get worse here. I hope this report is true, but this needs an explanation.

Take a look at this letter from the National Association of Disability Examiners (NADE), an organization of personnel who work at state Disability Determination Services (DDS) agencies and make initial and reconsideration determinations on disability claims. The letter was sent to Ruby Burrell at Social Security central offices. It concerns a proposal called the "Integrated Disability Process." I do not think that I have heard of this "Integrated Disability Process" previously. This may be a significant plan, but it is hard to tell exactly what is in the works, since we can only read a response to the plan, rather than the plan itself. It is also hard to tell how far along they are on this.

Here are a few excerpts to give you an idea of what may be afoot -- and note that it gets more interesting as you go along:

We advise that caution be used when placing weight on the TPs [Treating Physicians] MSS [Medical Source Statements], as these can sometimes be overly restrictive and in some instances fraudulent. Increased program costs will be the result of incorrect decisions driven by these types of MSSs. Some States have commented that, in many cases, TP MSSs appear to be exaggerated because many TPs want their claimant’s to receive benefits or they do not want their patients to believe that it was the TPs report that kept them from receiving benefits. ...

We support a standardized form for the MSS. This form should include in its format adequate space for individual comments/input as well as a statement that the source himself feels that the MSS he is providing is consistent with his medical findings. ...

The requirement of obtaining a MSS at the reconsideration level seems to be based solely on the ALJs’ ‘discomfort’ in making a decision without a MSS in file. This is based not on fact but rather a belief amongst ALJs that having an MSS makes their decision legally defensible. This change will inevitably result in an increase in processing time, as fruitless efforts to obtain an MSS from uncooperative providers are pursued. ...

Slide #25-27: there may be a benefit in rewriting SSR 96-2p and eliminating the ‘controlling weight’ provision. There is no similar concept in other governmental or private agencies. Removing the concept of a controlling opinion would allow for more equity in the consideration of other opinions. ...

There is some support for the concept of DDSs conducting selected face-to-face interviews by highly trained DDS staff before the case goes to ODAR. This could provide some cost benefit savings for many cases involved in the more costly appeals process at the ODAR level. We would welcome additional discussion on this proposal.

By the way, NADE, what a way to feed into the stereotypes that others have about DDS personnel! Really, I did not think you would be that concerned about a few more claimants being approved.

Nov 16, 2008

The National Association of Disability Examiners (NADE), an organization of the personnel who make initial and reconsideration determinations on Social Security disability claims, has issued its Fall 2008 newsletter, complete with a summary of a speech that Commissioner Astrue made at a NADE Conference.

Nov 15, 2008

Dr. Susan Daniels, who worked at the Social Security Administration during the Clinton Administration, has been appointed by the Obama transition to be a lead in their planning team for the Social Security Administration.

I have already noted that the disastrous Re-engineering and Hearing Process Improvement initiatives happened on Dr. Daniels' watch at Social Security, but those were not the only bad things that happened then. Two of the most viciously anti-claimant regulatory changes ever made at Social Security also happened then. The obesity listings were eliminated and the examples that had been in section 201.00(h) of the grid regulations were eliminated. You think this sounds technical and unimportant? Trust me, there are tens of thousands of people who never got Social Security disability benefits because of those changes. There was never any justification for either. Neither has been forgotten. Both still rankle. I remain astonished that these changes happened while a Democrat was in the White House.

I do not want to go on and on about a person whose role is likely to be over in about two months, but just try to find one example of Dr. Daniels speaking out about the enormous backlogs that have developed at the Social Security Administration. Where was she when she might have done some good?

Dr. Daniels is no well-respected elder statesperson. She should not have gotten this appointment. Any nomination of Dr. Daniels to serve in any official capacity at Social Security would be controversial. She does not even have any business on the Social Security Advisory Board and I think the SSAB is so worthless that it ought to be abolished.

Nov 14, 2008

President-elect Obama's transition office has announced the "team leads" for the Social Security Administration Review Team. It is not clear from the announcement whether this is the entire team. My guess is that there will be more. Here are the people announced today:

Dr. Susan Daniels is currently self employed, with the firm Daniels and Associates. From 1988 to 1991 Daniels served as Associate Commissioner in the Rehabilitation Services Administration in the U.S. Department of Education. From 1991 to 1994 she was Associate Commissioner of the Administration on Developmental Disabilities in the U.S. Department of Health & Human Services. Daniels served as Deputy Commissioner for Disability and Income Security Programs at the Social Security Administration from 1994-2000, where she helped pass The Ticket to Work and Work Incentive Improvement Act.

Jim Roosevelt is president and chief executive officer for the Tufts Health Plan and formerly served as senior vice president and general counsel. Before joining Tufts Health Plan, Mr. Roosevelt was the associate commissioner for Retirement Policy for the Social Security Administration in Washington, D.C. He has also served as chief legal counsel for the Massachusetts Democratic Party and is co-chair of the Rules and By-laws Committee of the Democratic National Committee. Mr. Roosevelt spent 10 years as partner at Choate, Hall and Stewart in Boston. He is past chairman of the board of trustees for the Massachusetts Hospital Association, past president of the American Health Lawyers Association and past chairman of the board of trustees for Mount Auburn Hospital. Currently, Mr. Roosevelt serves as chairman of the board of directors for Massachusetts Association of Health Plans, and as a member of the board of directors at America's Health Insurance Plans, Emmanuel College and the Kenneth B. Schwartz Center. He is also co-chair of the board of directors for the Tufts Health Care Institute.

Addendum: Can someone refresh my recollection? To what extent was Dr. Susan Daniel involved with the Re-engineering and Hearing Process Improvement debacles? There were plenty of extenuating circumstances, but the Clinton Administration is hardly remembered as a golden age for the Social Security Administration. The fact that Dr. Daniel lists the failed Ticket to Work program as if it were a shining achievement is hardly reassuring.

In 1981 the Social Security Subcommittee in the House of Representatives published a staff report with the title "Social Security Hearings and Appeals: Pending Problems and Proposed Solutions." This is not available online. The report began "The backlog of social security administrative law judge hearings is rapidly reaching crisis proportions."

Click on the attached page from that report showing the situation at that point and compare it to the current situation. If the situation in 1981 was a near crisis, how should the current situation be described?

The current Commissioner of Social Security tells us things are getting better because they are getting worse at a slower rate than they used to. His goal is to slowly, slowly work towards a situation in which it would take about a year to get a hearing. before an Administrative Law Judge. He believes that this would constitute normality, even though he was working at Social Security at the time this report was produced in 1981. I do not think many people believe that the Commissioner even has a plan to reduce the backlog at all, but his plan, even taken at face value, would take us to a place that would be much worse than what seemed intolerable in 1981.

The late Senator Daniel Patrick Moynihan coined the phrase "defining deviancy down" to describe permissiveness in criminal justice. Commissioner Astrue is trying to define adequate service down at Social Security in a dramatic manner.

Barack Obama titled his second book, The Audacity Of Hope. I think we should take this title seriously. We should aspire to levels of service at the Social Security Administration comparable to what they were before Ronald Reagan was elected President. Anything less seems to me lacking in both audacity and hope.

We have a political situation that has not been present since at least 1964 -- a Democrat elected President with a strong mandate and a heavily Democratic Congress. Don't tell me that we cannot aspire to really do something about the mess at Social Security.

Nov 13, 2008

A team from the Obama transition will be visiting the Social Security Administration soon to talk with the Commissioner and other high level officials. If you had a chance to talk with the Obama transition team, what would you say?

Nov 12, 2008

The Obama Transition Team has started to announce some of the people who will be doing agency reviews. Tom Perez will be heading up the agency reviews for Justice, Health and Human services, Veterans Affairs, and Housing and Urban Development, the group that seems most likely to include Social Security. Here is a little information about Perez:

He is Secretary of the Maryland Department of Labor, Licensing and Regulation under Governor Martin O’Malley. He worked in a variety of civil rights positions at the Department of Justice, including Deputy Assistant Attorney General for Civil Rights under Attorney General Janet Reno. He also served as Director of the Office for Civil Rights at the U.S. Department of Health and Human Services under Secretary Donna Shalala, and as Special Counsel to Senator Edward Kennedy. From 2001 until 2007, he was Assistant Professor of Law at the University of Maryland School of Law, and is an adjunct faculty member at the George Washington School of Public Health.

No word yet on who will be on the "parachute team" that will be landing on Social Security in the near future.

After Republicans took control of Congress in 1994, they quickly passed the Legal Aid Act of 1995, which banned federally funded legal aid organizations from bringing class actions. My recollection is that the Republicans threatened to cut off all funding for legal aid in order to get President Clinton to sign the bill. This had the unfortunate effect of almost completely ending class actions against the Social Security Administration. In the 1980s and 1990s class actions had a major beneficial effect upon Social Security.

There was an op ed piece in the New York Times back in April calling for an end to the ban on federally funded legal aid organizations bringing class actions. There was a piece in The Nation in January calling for the same thing. I do not think that the friends of legal aid have forgotten about this issue or regard it as closed. I hope that this will get a hearing in the new Congress.

Nov 11, 2008

Nov 10, 2008

Social Security has adopted new rules that say that "any [representative] payee who previously satisfied the payee investigation criteria, including a face-to-face interview, and currently serves as a payee generally need not appear for another face-to-face interview when subsequently applying to become a payee unless we determine within our discretion, that a new faceto- face interview is necessary."

The proposed rules that I have discussed here and here that would take away the right of an Administrative Law Judge (ALJ) to schedule his or her hearings and let the Social Security Administration do the scheduling are the the Federal Register today. This may sound technical, but it is a big deal.

Finally, Commissioner Astrue has scheduled a public hearing for November 18 in Fort Myer, VA on his Compassionate Allowance plan and it is clear that he is planning to hold the hearing himself. In and of itself, the public hearing, like the Compassionate Allowance plan itself, is trivial but scheduling this is an indication that Michael Astrue is not leaving his position as Commissioner in the immediate future.